RDQD and Child Support Registrar (Child support second review)

[2020] AATA 160

RDQD and Child Support Registrar (Child support second review) [2020] AATA 160 (12 February 2020)

Division:GENERAL DIVISION

File Number(s):      2018/6860

Re:RDQD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndXVHS

OTHER PARTY

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:12 February 2020

Place:Sydney

The reviewable decision is set aside and in substitution, the Tribunal decides that there was no change in the Father’s pattern of care from 1 May 2018.  He continued to have at least regular care of the children.

...................[sgd].....................................................

Mrs J C Kelly, Senior Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – percentage of care – shared parenting plan – meaning of ‘pattern of care for the child’ – whether each parent had pattern of care for the children – whether there was a change in the pattern of care – whether the existing percentage of care determination should be revoked and a new determination be made – decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Child Support (Assessment) Act 1989 (Cth) ss 5, 49, 50, 51, 54A, 54B, 54F, 54G, 54H, 55C, 55D

A New Tax System (Family Assistance) Act 1999 (Cth) s 3

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

P v Child Support Registrar [2013] FCA 1312; 62 AAR 17

Parent A and Child Support Registrar and Anor [2013] AATA 562; 137 ALD 426

Polec v Staker and Another [2011] FMCAfam 959; 253 FLR 339

SECONDARY MATERIALS

Child Support Guide, version 4.46, 10 February 2020

Family Assistance Guide, version 1.217, 10 February 2020

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

12 February 2020

Background to the review

1. The Tribunal has to decide the care percentages to be used in a child support assessment pursuant to the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

2. The applicant is the father (the Father) and the third party to the proceedings is the mother (the Mother) of two children, K, born in May 2010, and B born in February 2013.

3. On 12 October 2017, a Child Support Assessment was issued for the Assessment period 15 September 2017 to 5 October 2017. The Mother was assessed to have 100% of care of both children and the Father was assessed to have 0% of care of both children.

4. On 12 October 2017 a Child Support Assessment was issued for the period 6 October 2017 to 14 December 2018. The mother’s care percentage was 85% and the Father’s care percentage was 15%.

5. On 25 October 2017, the Mother objected to that decision. The objection decision made on 24 January 2018 determined that the Father’s care percentage was 14% and the Mother’s care percentage was 86%.

6. On 1 May 2018 the Mother applied to amend the child support assessment because the Father did not have care of the children over the school holidays.

7. On 12 May 2018 the Respondent decided that the Mother provided 90% of care for K and B and the Father provided 10% of care of both children, effective from 1 May 2018. 

8. The Father objected to that decision on 29 May 2018 because he said that the Mother denied him access to the children on two occasions. He also provided an unsigned Shared Parenting Plan effective from 6 October 2017 (the parenting plan) which stated that:

   ·The children would continue to live with the mother

   ·The children would spend time with the Father according to the two week schedule:

   oWeek 1 – Friday to Sunday

   oWeek 2 – Friday evening - the Father was to collect the children from school and drop them to the Mother at a specified location at 7.30 pm.

9. The parenting plan specified what the arrangements for Christmas 2017 were. In relation to vacations, the parents agreed to share information about holiday destinations and plans prior to taking B and K on vacation. They agreed to text message each other about their holiday plans “giving as much notice as possible”.

10. A review of the of care arrangements was scheduled for 10 January 2018, when the Easter 2018 “and going forward” and pick up and drop off arrangements would be discussed. The review did not take place. The Mother said it was because the Father would not attend.

11. On 2 June 2018, the Respondent advised the Mother of the Father’s objection to the 12 May 2018 decision and that she had until 30 June 2018 to respond.

12. On 6 June 2018, the Father advised the Respondent that the parenting plan was being followed until 1 January 2018 when he was unable to pick up the children from the Mother because there was an Apprehended Violence Order (AVO) in place which prevented him from contacting the Mother. The Father was requested to provide evidence of nights of care.

13. On 26 June 2018, the Mother informed the Registrar that care was in accordance with the parenting plan, other than at school holidays because she generally takes the children to visit her family then and the Father’s fortnightly care resumes after that time. She advised that the Father last had the children during school holidays in January 2018 and that he did not have care of the children during the Easter 2018 holiday period. She sought a care percentage of 90% backdated to the missed event, that is, the start of the Easter 2018 school holidays.

14. On 3 September 2018, the Respondent allowed the Father’s objection made on 29 May 2018 by refusing to amend the child support assessment to reflect the Mother’s 90% care of the children. 

15. The Mother then sought review of that decision in the Social Services & Child Support Division of the Tribunal which decided on 5 November 2018 to set aside the decision made on 3 September 2018 and in substitution decided that from 1 May 2018 the Mother had 87% of care of the children and the Father had 13% care of the children (AAT1).

16. The Father has applied for review of the decision made by AAT1.

17. The practical effect of the decision under review is that the Father’s financial contribution for care for the children is increased substantially because his percentage of care is less than 14%. Conversely, the Mother receives the higher financial contribution. A person has “regular care” of a child if the care percentage is at least 14% but less than 35%.[1] That is an acknowledgement that the person was directly meeting some of the child’s costs through care. Under the statutory formula, if a person does not have regular care, that is, if the percentage of care is less than 14%, the person gets no financial “credit” for providing that care to reduce the cost percentage that is used in the formula to work out child support percentages.

    [1] The Assessment Act, section 5(2).

    The evidence

18. The Respondent did not take a position on the appropriate outcome of this case but provided assistance to the Tribunal in relation to the relevant law and background facts. It provided documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), a Statement of Facts, Issue and Contentions, a spread sheet summarising the care pattern claimed by the Father and the Mother, a written submission about the definition of overnight care and whether a child support assessment needs to be in place for 12 month in order for a pattern of care to be assessed, and oral submissions.

19. The Father and Mother provided voluminous documentary evidence, comprising screen shots of text messages, diary entries, after school care records and versions of events.  They gave oral evidence and after the hearing raised some issues in writing and provided additional documentary evidence. 

    The law

20. The Assessment Act provides for administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which includes variables such as the parents’ adjusted taxable incomes, the costs to raise the children, and the percentages of care each parent provides (Division 4 of Part 5 of the Assessment Act).

21. Percentage of care determinations may be made under sections 49 or 50 of the Assessment Act, depending on the pattern of care a parent provides.

22. A new percentage of care determination cannot be made where a determination for the relevant care period exists unless the existing determination is revoked: sections 49(1)(b)(i) and 50(1)(b)(i) of the Assessment Act.

23. Section 49 of the Assessment Act applies if the Respondent revokes a previous determination of a parent’s percentage of care and is satisfied that the parent has had, or is likely to have, no pattern of care during the care period. The result is that the percentage of care must be 0%.

24. Section 50 of the Assessment Act applies if the Registrar revokes the previous determination of a parent’s percentage of care and is satisfied that the parent has had, or is likely to have, a pattern of care during the care period which may be from 1% to 100%. Subsection 50(3) of the Assessment Act requires the percentage to be that which corresponds with the actual care of the child the Respondent is satisfied that the responsible person has had, or is likely to have, during the care period.

25. Section 51(1) of the Assessment Act talks about determining a persons’ percentage of care for a child pursuant to section 49 or 50 where a care arrangement applies to the child. “Care arrangement” is defined in section 5(1) to have the same meaning as in the A New Tax System (Family Assistance) Act 1999. Relevantly, a care arrangement is an agreement between the parents of a child that relates to the care of the child. The Respondent submitted that the agreement must be signed, relying on instruction 1.1.C.05 in the Family Assistance Guide.   

26. The actual care of a child that a person has had, or is likely to have, or the extent of care of a child that a person should have had under a care arrangement, during a care period may be based on the number of nights that the child was in, or should have been in, the care of a person: section 54A of the Assessment Act. The Respondent submitted that there may be some occasions where only counting the nights in care does not accurately reflect the care arrangements for a child and provided the example of where care is provided from 8 am to 6 pm every weekday.

27. If a percentage of care determination is made, it applies to each day in the care period, unless the determination is revoked: section 54B. The length of the care period is not defined in the Assessment Act.

28. Section 54F of the Assessment Act provides that an existing determination of a percentage of care must be revoked if the Registrar becomes aware, that the care of the child is actually taking place does not correspond with the person’s existing percentage of care for the child and the new care percentage would affect the cost percentage. Section 54F only applies if s 54G does not.

29. Section 54G of the Assessment Act provides that a determination must be revoked if a person has been determined to have less than regular care of the child during a care period and that person has had no care of the child or a pattern of care that is less than regular care of the child, despite the other responsible person making the child available. A revocation of a determination under s 54G takes effect from either the date of effect of the existing determination if no pattern of care was ever established, or, if an established pattern of care ceased, from the date of the cessation of that pattern of care.

30. Section 54H of the Assessment Act provides that the relevant decision-maker may revoke a determination of an existing percentage of care for a child if the decision-maker is notified or becomes aware that the care of the child taking place does not correspond with the person’s existing percentage of care for the child and that a determination of the percentage of care would not be the same as the person’s existing percentage of care. Section 54H only applies if neither section 54F nor 54G apply.

31. Each of sections 54F, 54G and 54H of the Assessment Act specify when the revocation of the determination takes effect.

32. A person’s cost percentage is worked out in accordance with the table in section 55C of the Assessment Act. If the percentage of care is 0 to less than 14%, the cost percentage is nil. If the percentage of care is 14 to less than 35%, the cost percentage is 24%.

33. Each parent’s child support percentage for a child for a day in the child support period is worked out using the formula in section 55D of the Assessment Act:

    Parent’s income percentage     _     Parent’s cost percentage

    for the child for the day   for the child for the day

34. Parts of the Child Support Guide are also relevant, particularly 2.2.1. The Tribunal is not bound by that policy but must take it into account and will follow it unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

35. The Respondent set out the list of matters considered in Polec v Staker and Another [2011] FMCAfam 959; 253 FLR 339 to be relevant to determining the extent of a person’s care of a child in the child support context. It also referred to Wigney J’s consideration of that list in P v Child Support Registrar [2013] FCA 1312; 62 AAR 17. His Honour held that the list was not “some sort of exhaustive check list of matters” that had to be considered. His Honour observed that “care” is not defined in the Act, and that the extent of care will depend on the facts and circumstances of the particular case.

36. The Tribunal considered the meaning of the term 'pattern of care' which is referred to in sections 49(1) and 50(1) of the Assessment Act, in Parent A and Child Support Registrar and Anor [2013] AATA 562; 137 ALD 426 and said at [33]:

    The phrase 'pattern of care' is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or

    flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.

    The issues to be decided

37. The following issues have to be decided:

    (a)Whether each parent had a pattern of care for the children, and if so;

    (b)Whether there was a change in the pattern of care and percentage of care that the Father and Mother provided to the children during the care period, and if so;

    (c)Whether the existing percentage of care determination should be revoked and a new determination made, and if so; and

    (d)The date of effect of that change.

    Consideration

38. The Mother asserted that there had been a change in the pattern of care because the Father did not have care of the children over the school holidays, 14 to 30 April 2018, and therefore he had a pattern of care that was less than regular care of the children. The Father said that the Mother had denied him access to the children on two occasions.

39. The Father cared for the children from Friday 6 April to Sunday 8 April 2018, inclusive. He cared for both children on the afternoon/evening of Friday 13 April 2018. On 16 April 2018 the Father messaged the mother confirming that it was his weekend coming up (Friday 20 April to Sunday 22 April 2018). The Mother replied that it was school holidays and “as stated ages ago we are going away”. They arranged for the Father to have both children for about two hours on the afternoon of Wednesday 18 April 2018. The Mother had booked both children into a “mind craft event” on 21 April 2018. A message included a photograph of the children at that event. The Father’s birthday was on 22 April 2018. He did not see his children. 

40. On 23 April 2018, the Father asked if he could have the children “this weekend” (27 to 29 April 2018). The Mother replied that “we had planned on a river trip this weekend”. The messages show that the Mother only went away on the Sunday afternoon of the previous weekend, that is, 22 April 2018, the Father’s birthday. She said that K had been unable to travel because of a “vomiting bug” and “You knew the dates we were traveling. It’s school holidays and I have care of B and K during this period”. She repeated that assertion and offered the Father to have care the following Monday. The Father replied that she did not have care of the children all school holidays and that he was working on Monday. The dispute continued with the Mother maintaining that she had care of the children during school holidays. She had the children from 27 to 29 April 2018. The Father cared for them for 11 hours on Monday 30 April 2018.

41. The January 2018 care percentage determination for the Father was 14%, that is, he had regular care of the children. If the Tribunal accepted the Mother’s argument that the pattern of care had changed from the April 2018 school holidays, as was accepted by AAT1, the Father’s care percentage would arguably be less than 14% and the Father would have a pattern of care that is less than regular care of the children. Consequently, his cost percentage would be 0. The Mother would benefit financially. The Father would be disadvantaged financially.

42. Section 54G of the Assessment Act is the relevant provision in those circumstances. It requires that both determinations made in January 2018 be revoked if all the criteria are satisfied, including subsection 54G(1)(b) of the Assessment Act which provides:

    The first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person (emphasis added).

43. The Mother’s oral evidence was that:

    ·She was told that dropping to 85% care percentage would not change the financial support she received, but it “quite substantially affected” the financial support she received. 

    ·If the Father had the children during the school holidays, he would have 14-15% care.

    ·He had fewer than 52 nights per year from 15 September 2017.

    ·She denied lodging the objection in May 2018 because of the reduction in the financial support she received as a consequence of the Father’s care percentage being 14% or more. 

44. After the hearing, the Mother submitted that the Tribunal should not accept that some of the messages were from her. The Mother said that she had not been asked about that during the hearing. 

45. If the Mother had not sent some of the messages, she had ample opportunity to point that out before the hearing or to say so during the hearing. Her post-hearing submission reflected her awareness that the Tribunal had expressed some concerns about her conduct during the hearing. The screen shots of messages she submitted before and after the hearing do not support her assertion. They are consistent in terms of the tone and concerns raised with the Father.

1. There was a pattern of care for the children from 6 October 2017 until October 2018 in accordance with the parenting plan for the Father to have the children from Friday to Sunday in week 1 and on Friday evening in week 2. Based on that pattern of care, the Father’s care percentage is 15%, without taking into account the hours of care he provided every second Friday afternoon.  However, from April 2018 the Mother has mostly had care of the children during the school holidays and the Father has not had the children according to the fortnightly plan during the holiday period. 

2. It is relevant that the Mother is a school teacher and the Father is self-employed and does not have paid holidays.

3. During the January 2018 school holidays there was a dispute about when the Father would have the children, but he did have them from 4 to 8 January 2018 and then Friday 19 January to Sunday 21 January 2018.   

4. The Mother’s assertion in the messages in April 2018 that she had care of the children during school holidays was an accurate reflection of the 2015 Shared Parenting Plan.  However, the 2017 parenting plan was in different terms. It stated:

   We, the parents, agree that:

   ·We will share information with each other about any holiday destinations and plans prior to taking (B and K) on vacation.

5. It also states under the heading Parental Decisions:

   ·We will text message each other regarding any intention we have to go on holiday with the children, giving as much notice as possible.

   ·Holiday plans will be discussed between us via text message and confirmed via text message.

6. Under the heading Parental Relationship, it stated that the parenting plan can be changed, provided both parents agreed, if there was no agreement they would adhere to the terms of the parenting plan or return to Family Dispute Resolution. 

7. Neither parenting plan was signed, and is therefore not a care arrangement as defined in s 5(1) of the Assessment Act. However, both the Father and Mother were acting generally in accordance with the 2017 parenting plan, including in relation to communication between them until the April 2018 school holidays. They both refer to the plan in messages before and after that date as though they are following it.

8. The Tribunal finds that the Mother did not make the children available to the first responsible person as required by s 54G of the Assessment Act. Her behaviour from April 2018 and during school holidays thereafter has had the effect of reducing the Father’s care of the children, so that, arguably, it fell below 14%, and therefore his cost percentage would be 0% and the Mother would continue to receive a higher amount of child support. Her behaviour has also often been to swap times during a day but not overnight, which leads to arguments about whether hours of care other than nights should be considered for the purpose of determining the care percentage. She also offers the Father opportunities to care for the children at times that will clearly not be convenient to him, including week days when he works, and on weekends that he is not scheduled to have the children. There being a pattern of care, he clearly plans his life, including his weekends, to ensure he can take care of the children on the scheduled weekends and undertake other activities on the non-care weekends.

9. There were many messages from the Mother to the Father about him not paying child support or making adequate financial contributions to the support of the children in 2017 and 2018, particularly before the April 2018 school holidays. It was clearly an important issue to her. 

10. Once the Mother realised around April 2018 that the January 2018 determination had resulted in her receiving less child support, she changed her behaviour. Her behaviour is not justified by the parenting plan. It would have been helpful if the Father had replied immediately to her messages about what she was planning to do with the children during the holidays when she advised him of those plans, particularly for the school holidays after May 2018, however the plan talks about discussing holidays. Effectively the Mother has made unilateral decisions about the care of the children during holidays and resisted changing them when the Father did engage in discussion. That is not in the spirit of the parenting plan. She did not make the children available to the Father as required by s 54G of the Assessment Act.

11. Therefore the grounds for revocation pursuant to s 54G of the Assessment Act have not been satisfied. There was no change in the Father’s pattern of care for the children from 1 May 2018. He continued to have at least regular care of the children.

    DECISION

12. The reviewable decision is set aside and in substitution, the Tribunal decides that there was no change in the Father’s pattern of care from 1 May 2018. He continued to have at least regular care of the children.  

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.....................[sgd]...................................................

Associate

Dated: 12 February 2020

Date(s) of hearing:	9 October 2019
Date final submissions received:	23 October 2019
Applicant:	In person
Solicitors for the Respondent:	Ms T Hibberd- Department of Human Services
Other Party:	In person